Curry v. Mackenzie , 208 A.D. 849 ( 1924 )

Order reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The affidavits show that there is no issue of fact which entitles the defendant to a trial, and his affidavit is insufficient to show that he has any real defense. Manning, Kelby and Young, JJ., concur; Kapper, J., dissents upon the ground that an issue of fact is presented whether the rendition of the account as pleaded constituted an account stated; and upon the further ground that the reasonable value of the services alleged to have been rendered also presents a question of fact under the pleadings; with whom Kelly, P. J., concurs.